Bostock and the Threat of Judicial Overreach

CHASE WATHEN—With everything that has been going on this year, some recent controversial decisions out of the Supreme Court have flown under the radar. One such case is Bostock v. Clayton County, which held that the Civil Rights Act of 1964 prohibited discrimination in employment based on someone’s gender identity and sexual orientation. Justice Gorsuch, a President Trump appointee who brands himself a textualist, authored the opinion, which was shocking to many Court observers. Justice Gorsuch was joined by Chief Justice Roberts. This case exemplifies an important divide in the American mind. Some celebrate the opinion as a massive step forward in the quest for equality; others, though supportive of the end result, question the means the Court used to get there.

Bostock is an agglomeration of three cases with the same basic fact pattern. The plaintiffs in each case were fired by their employers soon after revealing “that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” Plaintiffs contended that their employers violated Title VII of the Civil Rights Act of 1964 which makes it unlawful for an employer to fire someone because of their sex. The Court concluded that when an employer fires someone because they are homosexual or transgender, the employer necessarily did so because of their sex. Imagine, for example, a situation where a female employee is fired for being married to a female. Then, reverse that employee’s gender to male. Would the employer still have fired them if they were a male married to a female? Justice Gorsuch reasoned that in a situation like this, the employee was fired because of her sex and, in doing so, the employer violated Title VII.

This case will undoubtedly have an impact on the way many employers operate. The Court did not address things like grooming standards and bathrooms, but many employers will likely change current protocol just to be safe. Individuals who are transitioning may now have a claim for accommodation under the Americans with Disabilities Act. It is still unclear what impact this decision will have on employers with legitimate religious objections and how it may be limited by the Religious Freedom Restoration Act. Arguably the largest impact will be in the structure of employee health plans. Some plans do not cover transition surgeries, hormone therapy, and other services related to Gender Dysphoria. Others make the children of homosexual spouses ineligible as dependents. These issues will have to be addressed immediately if employers wish to avoid liability under Title VII post-Bostock.

Bostock also highlights the white-hot ideological divide among some who view the decision as an instance of the Supreme Court filling in the gap to protect individual liberties and others who view it as a dangerous example of judicial activism. Before Bostock, virtually no one thought the word “sex” in Title VII protected gender identity and sexual orientation—not those who passed the bill in 1964, and not even current democratic members of Congress. If so, why did the house pass the “Equality Act” in 2019 which sought to protect these groups? Essentially, the Court’s conclusion means that one day Title VII did not cover these groups and the next day, without any amendment, it covers them.

The framers did not see the Supreme Court playing such a pivotal role in American life and would likely never have imagined the Court taking the sort of action it did in Bostock. Federalist No. 78 lays out the role envisioned for the judiciary, which the framers thought to be the weakest of the three branches. The Framers imagined the Judiciary to have “neither force nor will, but merely judgment.” Some may like the Court overstepping its boundaries in this case, but what happens when it does the same thing in another case and they do not like the result? The United States Constitution is designed to prevent one branch usurping power from another, the idea being that the ambition of one branch would counteract the ambition of another. Is it wise to have unelected judges taking laws out of the legislative process and making decisions that end with brand-new laws that have never been voted for? After all, there is a mechanism for achieving the same result as Bostock within our constitutional framework: Congress passes a new law or amends an existing one to protect sexual orientation and gender identity.

Whatever your feelings about Bostock, the case was very impactful and will have real world effects. Though it protected civil rights, the case is also another instance in a long line of cases where the Supreme Court has stepped in and did Congress’ job for it. Americans need to ask themselves how comfortable they are with that going forward. With the next President likely having two vacancies to fill on the Court, it is decisions like this that make the upcoming presidential election all the more important.